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335856
Mon, 07/21/2014 - 05:41
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MH17: M'sia Can Launch Legal Action, But Evidence Must Be Obtained First - Legal Experts

By Suriati Sidek Ahmad KUALA LUMPUR, July 21 (Bernama) -- Malaysia has every opportunity to bring the MH17 crash case to justice but it is vital to obtain evidence as to what type of missile was used to shoot the Malaysia Airlines plane and other facts too be uncovered first, said legal experts Sunday. A list counsel of the International Criminal Court (ICC), N.Sivananthan said to do this, access to the crash site was crucial and urgent so that the evidence were not contaminated. "It allows for closure and perhaps also a revelation of the circumstances in which the missile was fired and the reasons for doing so. This will go a long way towards satisfying the questions in the minds of all the families of those onboard the aircraft," he told Bernama Sunday when asked to explain on legal action that Malaysia should take forward over the MH17 plane crash. Sivananthan, who is also vice-president of the International Criminal Bar, stressed that the MH17 incident had been a breach of Article 3 of the Chicago Convention (Convention on International Civil Aviation), which prohibits any attack on a civilian aircraft. However, a claim brought to the International Court of Justice (ICJ) would be a claim for compensation and damages, he added. "In our situation, the first issue would be who is responsible. There are three possible parties to sue, i.e., the Ukranian government, the Pro-Russian rebels and Russia. "Bearing in mind that one or more of the three must be responsible, this would be a good start to obtaining evidence as to what type of missile caused the crash and the location it was fired from," he said. He pointed out that legal action could be jointly taken by Malaysia and all the countries whose citizens were onboard MH17, so that the jurisdiction of the ICJ was really a civil one. Sivananthan said the other option was to get the ICC involved but added that in this case, Ukraine was not a state party, so the ICC had no jurisdiction. "However, Ukraine can agree to subject itself to the jurisdiction of the ICC in respect of this incident or the United Nations Security Council can refer the incident to the ICC. "At the moment, the incident can be defined as a terrorist act within the definition of crime against humanity or a war crime. I suspect that if Ukraine is saying that the rebels were responsible, they would be more than willing to agree to the ICC getting involved," said the lawyer. Sivananthan explained this would mean that investigations could commence and might end up with warrants of arrest being issued and enforcing the warrants would still require the assistance of the Ukrainian government, but at least "we can put a face or faces to the perpetrators involved". He said once they were arrested, they could be transferred to The Hague to stand trial and the investigation would likely show where the weapons came from and even if no charges could be levied against Russia, the international implications would be very damning. "The breach of Article 3 of the Chicago Convention becomes the basis of the complaint to the ICJ and would also be the basis for the UN Security Council to refer the matter to the ICC, if Ukraine does not submit voluntarily. "I think for the reasons stated above, Malaysia has every opportunity to do so. The action at the ICJ is to determine the parties responsible and to obtain a judgment against them," he said, adding that even if enforcement was an issue, at least the guilty parties could be identified. Sivananthan said the action with regard the ICC would allow Malaysia to put a name and a face or names and faces to those responsible and it allowed for closure and perhaps also a revelation of the circumstances in which the missile was fired and the reasons for doing so. Asked on the black box, he said Malaysia certainly had every right to retrieve the black box while the Ukranian authorities had a right to investigate the information contained therein, as the crash occurred in their jurisdiction and there was no reason why the investigation could not be jointly conducted with Malaysia and other international authorities. "If the black box is in the hands of the Russians as some news reports suggest, then they should give it up immediately as they have no business keeping the same. "If they have it and do not give it up, that would give credence to the fact that they were involved and will be a basis for the UN and the international community to act. This also applies to all the evidence found at the scene," said the lawyer. To another question, he said the Attorney-General's Chambers (AGC) had no power to act on the incident as it occurred in another jurisdiction. "What is best would be to pursue the matter at the ICJ and ICC and at a diplomatic level to persuade the Ukranian government to subject this situation to the jurisdiction of the ICC. This will also ensure that the incident is investigated at an international level and will put tremendous pressure on those involved," he said. However, he noted that this matter could not be left alone and those responsible must be held accountable. Sivananthan pointed out that they (persons involved in the plane shooting) had acted with impunity with no regard or respect for human life and those who has wilfully or blindly supported them must be made to pay the price and their identities revealed. Human Rights lawyer Malik Imtiaz Sarwar is also of the same view that Malaysia should bring the case to ICC and alternatively, there may be a way of taking it to the ICJ. "If it can be shown that country (Ukraine or Russia) was complicit, compensation can be sought from it, like how Iran took the US to the ICJ over the shooting down of an Iraninan airliner by a US warship in 1988," he said. Malik also felt that the AGC should set up a legal task to look into the matter on an urgent basis and if the identity of persons responsible could be determined, the Attorney-General had fairly wide powers to prosecute if terrorists were responsible for the shooting, but that would involve extradition, etc. "Definitely there is a need for more evidence and I think the Malaysian government needs to get a qualified investigation team into the picture as soon as possible," he said, adding that the facts had to be uncovered first and various options looked into urgently to understand what was needed. Director of the Sabah Strategic and Security Research Centre, Universiti Malaysia Sabah, Prof Dr Zaini Othman said as the incident took place in a disputed area of Ukraine, the Malaysian government must take a smart approach over the incident, so that it would not jeopardise the objective of bringing the case to justice. "As the disputed area where the tragedy took place has been declared a "war zone", it means that it is a fragile area where the party responsible for shooting down the plane could easily escape blame or responsibility," he said. Zaini also opined that Malaysia had a right to bring to trial the persons or organisation involved once identified. "But I personally think it is better for our government to approach the matter using the Chicago Convention," he said. -- BERNAMA

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